Kagan appears on her way to confirmation; Alabama's Sessions troubled by her testimony

Supreme Court nominee Elena Kagan shakes hands with Sen. Jeff Sessions, R-Ala., the ranking Republican on the Senate Judiciary Committee as as committee chairman Sen. Patrick Leahy, D-Vt., looks on at center, before the start of confirmation hearing before the committee, Monday, June 28, 2010, on Capitol Hill in Washington. (AP)

WASHINGTON -- U.S. Solicitor General Elena Kagan appeared on her way to confirmation as a Supreme Court justice after a third day of grilling from senators, including Sen. Jeff Sessions of Alabama, who again focused on legal issues involving gays serving in the military.

Kagan, 50, is President Barack Obama's second appointment, and she would be the fourth female justice, replacing retired Justice John Paul Stevens. Her appearance concluded late today, and testimony continues this afternoon from people who support or oppose her nomination.

Sessions, the lead Republican on the Senate Judiciary Committee, spent most of his first hour of questions over two days challenging whether Kagan's personal opposition to the "don't ask, don't tell" policy for gays in the military infected her decision-making as dean of the law school at Harvard and as solicitor general, the federal government's lead lawyer who argues Supreme Court cases.

In the end, Sessions late today said he "remained troubled" that he and Kagan could not agree on whether she treated the military fairly. He said he would review her record before announcing how he'll vote, but he signaled he was leaning against her.

Sessions said he was looking for a nominee who would be faithful to the Constitution and despite her testimony that she would, Sessions said her "record and statements leave me uneasy."

On Tuesday, he accused Kagan of "punishing" the military by barring the Pentagon's recruiters from the Harvard Law School's main career services office and instead forcing them to use the offices of a veterans group to meet with students. She testified that she was trying to follow the federal law that military recruiters have access to students, but also the school's policy that it not allow prospective employers into the campus recruitment office if they discriminate in their employment decisions. "Don't ask, don't tell" does not allow gay and lesbian soldiers to serve openly.

Today, Sessions questioned Kagan's work as U.S. Solicitor General when she decided not to ask the Supreme Court to review a lower court ruling that inhibited the Pentagon's ability to enforce the "don't ask, don't tell" policy. Sessions argued that by doing so, she was not upholding her oath as Solicitor General to defend the laws of Congress, even those that she personally disagrees with. Kagan argued her decision was made in consultation with the Pentagon because defending the "don't ask, don't tell" law would be easier at a point later in the legal process.

"I think that I have acted in the solicitor general's office consistently with the responsibility which I agree with you very much that I have, to vigorously defend all statutes, including the statute that embodies the 'don't ask, don't tell' policy,'" Kagan said.

Sessions said he "appreciated" her answer but that her decision was "in harmony" with what the American Civil Liberties Union was also arguing in the case. Sessions said he saw "no harm" in asking the justices to review the case earlier.

The hearing's schedule this week has been adjusted because of memorial services for Sen. Robert Byrd of West Virginia, so senators worked quickly to wrap up their questions Wednesday. Committee chairman Sen. Patrick Leahy, D-Vt., predicted Kagan would be confirmed. The committee has a 12-7 Democratic majority, and the full Senate has 56 Democrats, 41 Republicans and two independents.

"One of the greatest red herrings of this whole thing is this issue of military recruiters on Harvard's campus," Leahy said during a break. Democrats countered Sessions' line of questioning by arguing that military recruitment at the law school went up under Kagan's deanship, and she publicly encouraged students to consider legal careers in the military.

Sessions said during a break that his focus on "don't ask, don't tell" was unrelated to his support of the policy and her opposition to it.

"She said she was committed to defending a law that she so strongly opposed and I have serious questions about whether she did that," Sessions said.

Kagan's confirmation is the second for Sessions as the ranking Republican on the committee. Under his strategy, the GOP members of the panel used the hearing to explore issues more broadly than just Kagan's qualifications, including whether as a justice she would uphold aspects of what Sessions calls Obama's "big government" agenda.

For example, Republican senators asked Kagan's opinion on the recent health care law passed by Congress, part of which requires individuals purchase health insurance. There is a challenge to whether that law is constitutional, and while Kagan wouldn't say exactly how she would rule, she did say Congress had broad deference on regulating interstate commerce.

Republicans for two days asked skeptical questions about Kagan's ability to put aside her politics -- she was counsel and a policy aide to former President Bill Clinton -- if she were to become a justice. In the end, Sessions' vote is likely to hinge on whether he believes her repeated answers that she could. So far, his statements have indicated he does not.

Sessions also opposed Kagan's confirmation as solicitor general last year.

"I wish you a productive service, if that occurs," Sessions told Kagan.